RUBY POLYPLAST P.LTD,MUMBAI vs. ITO 13(3)(2), MUMBAI

O R D E R PER C.N. PRASAD (JM) 1. This appeal is filed by the assessee against the order of the Learned Commissioner of Income Tax (Appeals) – 21 Mumbai [hereinafter in short “Ld.CIT(A)”] dated 07.11.2016 for the A.Y. 2009-10.

(A.Y: 2009-10) M/s. Ruby Polyplast Pvt. Ltd., M.A.No. 901/Mum/2017 the appeal was recalled by the Tribunal by order dated 01.03.2019 for limited purpose of disposing off ground No.2 as the Tribunal omitted to dispose off ground No. 2 of grounds of appeal

. Therefore, the only ground left for disposal in this appeal is ground No.2 of grounds of appeal which reads as under: -

2. Ld. CIT(A) erred in confirming the addition made by assessing officer due to non-response of notice under section 133(6) issued to one of the creditors of the company - M/s. Health Plus, even though the details like PAN and Aadhar Card of the proprietor of M/s. Health Plus and confirmation of account of appellant in their duly certified by proprietor was submitted. 2.1. Ld. CIT (A) has confirmed the addition of Rs. 1,18,700/- to total income inspite submission of confirmation received from the said creditor. 2.2. The appellant was dealing with this party in F.Y.2008-09 relevant to A.Y. 2009-10. The appellant has submitted confirmation of party before Hon'ble CIT (A) as additional evidence as the appellant was unaware of any notice u/s 133(6) was sent by Ld. AO and response not received. This was evident from the proceeding sheet of Ld. AO, submitted before Ld. CIT (A). 2.3. Attention is also drawn to the fact that the postal response was "Left". That means the party was present during the earlier period.

3. In the course of the assessment proceedings the Assessing Officer issued notice u/s. 133(6) of the Act to one of the sundry creditors namely M/s. Health Plus for confirmation of the balances. The notice was returned unserved by postal authorities with the remark “LEFT”. The Assessing Officer was of the view that since the assessee was indulged in purchase of non-genuine purchases the sundry creditor was also treated as bogus and was accordingly disallowed u/s. 69 of the Act. On appeal the Ld.CIT(A) sustained the addition/disallowance observing that copy of ledger account filed before him does not bear any signature nor it is dated

(A.Y: 2009-10) M/s. Ruby Polyplast Pvt. Ltd., and is not in original and therefore it cannot be authenticated without the original.

(A.Y: 2009-10) M/s. Ruby Polyplast Pvt. Ltd., 6. Heard rival submissions, perused the orders of the authorities below. Assessing Officer has issued notice u/s. 133(6) of the Act to sundry creditor namely M/s. Health Plus but the notice was returned unserved. Assessing Officer presumed that this is also a bogus purchase transaction and accordingly disallowed. I noticed that no further information was asked by the Assessing Officer. It is not intimated to the assessee that the notice was returned unserved and to provide for new address. Assessing Officer has simply presumed that the transaction with sundry creditor is bogus without any verification. Before the Ld.CIT(A) assessee has furnished self-attested copy of Aadhar and PAN card of the proprietor of M/s. Health Plus was submitted, ledger copy of assessee account in the books of M/s. Health Plus duly signed by the proprietor of M/s. Health Plus has been furnished. Assessee also furnished acknowledgement given by the Sales Tax Department where the creditor M/s. Health Plus has surrendered its sales tax and applied for cancellation of certificate of registration issued under MVAT Act as the creditor has discontinued its business. Further details of TIN issued by Sales Tax Department was also furnished before the Ld.CIT(A) to prove that the transaction is genuine. However, all these evidences were brushed aside by the Ld.CIT(A) observing that they cannot be authenticated without any originals. If he had any suspicion over the documents he could have (A.Y: 2009-10) M/s. Ruby Polyplast Pvt. Ltd., called for originals, without asking for originals Ld.CIT(A) treated the documents as unauthenticated. In my view, the Ld.CIT(A) had not properly appreciated the evidences. The observation of the Ld.CIT(A) that the ledger account is not signed is also contrary to the record. The creditor has duly signed the ledger account further the signature of the creditor in all these documents also matches. Therefore, there cannot be any suspicion about these documents filed by the assessee. Since the assessee has filed the confirmation of accounts, PAN and Aadhar Cards the transaction with M/s. Health Plus cannot be treated as non-genuine and therefore the addition made cannot be sustained. Thus, the Assessing Officer is accordingly directed to delete the addition made u/s.69 of the Act in respect of the sundry creditor M/s. Health Plus. Ground No.2 of the appeal of the assessee is allowed.

Order pronounced in the open court on the 31st July 2019